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THE ASHCROFT MEMO:

"Drastic" Change or
"More Thunder Than Lightning"?

 

The National Security Archive
Freedom of Information Act Audit

Phase One Presented March 14, 2003

2003 National Freedom of Information Day Conference

 

 
Introduction
Executive Summary
Methodology
Findings Regarding Implementation of Attorney General Guidance Regarding FOIA
Preliminary Findings Regarding Implementation of White House Guidance Regarding FOIA and Classification
Findings Regarding Administration Openness/Secrecy Agenda
Findings Regarding Administrative Processing of FOIA Requests
Further Research
 
PRELIMINARY FINDINGS REGARDING IMPLEMENTATION OF WHITE HOUSE GUIDANCE REGARDING FOIA

The White House Memorandum was issued in March 2002. Each agency was directed by the White House Memorandum to "review their records management procedures and their holdings of documents" and report to the White House Chief of Staff on "the completion, or status, of their review" by June 19, 2002. At the time of the issuance of this report, each agency will have had 45 days to respond to the Archive's White House Memorandum FOIA request. Nonetheless, only 13 of the 35 agencies surveyed have provided substantive responses to the requests. Thus, the Archive's research into the implementation of the White House classification and FOIA guidance remains ongoing. Although it is too early to reach final conclusions regarding the implementation of the White House Memorandum, this report includes preliminary findings based on completed FOIA responses from approximately one-third of the 35 agencies surveyed. A complete discussion, along with complete sets of the materials obtained from the agencies, will be included with the issuance of the Phase Two report.

In general, agencies have anecdotally told the Archive that the White House Memorandum required more action than the Ashcroft Memorandum. It directs specific activities from each agency, including the identification of classified or sensitive records, activities to safeguard those records, and a report back on implementation. One thing that stands out in the internal agency activities relating to the White House and ISOO/OIP memoranda is the consistent repetition that FOIA exemptions can be used to protect critical infrastructure information and commercial information.

  • Agencies Reporting Limited or No Activity Resulting From the White House Memorandum

Several agencies, including OMB, Department of Education, FBI, and HUD, responded that they have no documents responsive to the FOIA request. These agencies failed to release any reports that may have been provided to the White House Chief of Staff regarding their reviews of records concerning weapons of mass destruction or sensitive, but unclassified, materials. For those agencies that do not deal with military or intelligence issues, it is not surprising that the White House Memorandum did not result in much activity. Nonetheless, Phase Two of the Archive Audit will include individual interviews with these agencies to determine what steps, if any, may have been taken.

FEMA indicated that it does not handle weapons of mass destruction, but did provide its report to the White House Chief of Staff, in which it verified that it complied with safeguards to protect against the release of potentially damaging information. Similarly, the NSF provided its report to the White House Chief of Staff, in which it indicated that it "completed reexamination of current measures for identifying and safeguarding information regarding weapons of mass destruction and other sensitive documents related to homeland security" and that its safeguards and "restrictions to access to information, are consistent with existing law and policy."

  • Agencies Treating White House Memorandum Primarily As FOIA/Disclosure Guidance

Many other agencies that do not handle weapons of mass destruction, such as the Small Business Administration, did circulate the White House and ISOO/OIP memoranda and issue guidance to all agency staff regarding the importance of records management procedures to Homeland Security. Similarly, the GSA noted that it does not deal with information regarding weapons of mass destruction but viewed the guidance on FOIA exemptions as relevant; GSA reported that it is reviewing its FOIA regulations "to determine, in conjunction with counsel, whether the exemptions from disclosure need to be revised." HHS also disseminated the memorandum to all its FOIA officers.

  • Agencies Taking Some Action In Response to White House Memorandum

Still other agencies appeared to have requested internal reviews, but not to have imposed centralized policy authority over the conduct of the review by agency components. These agencies also disseminated the White House Memorandum's guidance concerning FOIA disclosures. For example, the Treasury Department forwarded the White House and ISOO/OIP memoranda to Department officials and asked them to report on the existence of weapons of mass destruction information and related sensitive "Homeland Security" information and report on whether the records were protected in accordance with the ISOO/OIP guidance concerning classification, extension of classification, reclassification and protection of "sensitive but unclassified" information. The memorandum also highlighted the use of Exemption (b)(2) for sensitive critical infrastructure information and the use of Exemption (b)(4) for information voluntarily submitted to the government as means for withholding information from release under the FOIA. The Department's review determined that they do not handle much information pertaining to weapons of mass destruction, except for information already classified by other agencies, and that the sensitive Homeland Security information is already protected from release. All FOIA and disclosure officials were informed "to use [FOIA] exemptions" if there are requests for sensitive Homeland Security information.

The Department of Commerce also initiated a review to determine whether its units handle "classified, sensitive but unclassified, For Official Use Only" or unprotected records and requested a report on the steps taken to protect classified or sensitive information. The Department's Report on its efforts indicates that two units identified information regarding weapons of mass destruction or public harm scenarios, but the specific units and their corrective actions have been deleted from the report based on the "high" (b)(2) exemption to FOIA.

The Department of Navy distributed the White House Memorandum to all agency FOIA contacts with a cover memorandum that directed the recipient to "immediately adopt the steps addressed in the ISOO memorandum … when conducting a review of documents requested under FOIA." It also references the Ashcroft Memorandum and requests that particular attention be paid to "giving full and careful consideration to all applicable FOIA exemptions when processing documents that fall under this category."

  • Agencies With Significant Activity In Response to White House Memorandum

Some agencies appeared to initiate detailed review of their records, with centralized policy control exercised by the official responsible for the activity. For example, the Environmental Protection Agency forwarded the White House and ISOO/OIP memoranda to agency officials, noting that they do not constitute a change in EPA policy regarding the handling of information but "suggest a heightened awareness when dealing with classified or otherwise sensitive information." The memorandum notes that the Agency does not have original classification authority (although this authority was granted to EPA in May 2002), but that the need to protect sensitive but unclassified information related to homeland security is relevant. It specifically recognizes that the risk of disclosure should be considered together with the benefits of disclosure. It counsels that FOIA requests must be filled as directed in the Ashcroft Memorandum and highlights that Exemption (b)(2) may be used to protect sensitive critical infrastructure information and that Exemption (b)(4) may be used to protect voluntarily submitted information from the private sector. The memorandum notes that the Agency is working to identify sensitive "electronic information resources." An additional memorandum initiates a review of EPA websites, publicly disseminated information and information available to the public upon request. It too references the Ashcroft Memorandum and the use of Exemption (b)(2) to protect information that relates to critical infrastructure information. It specifically indicates that a decision to remove materials must be removed prior to any removal of the materials. The Agency's report on its activities notes, among other things, that it removed materials from its web site.

NASA also took a similar approach. It issued "NASA's Web Site Registration and Internet Publishing Guidelines" and blocked public access to all unapproved Web sites. It established a process for registration, review and approval of Web sites and materials. It also established an "Operational Security program" to educate all employees and contractors regarding security considerations, including the identification of critical information and the importance of protecting sensitive information. It disseminated the White House Memorandum among Center FOIA offices and discussed it at the agency's annual FOIA conference. NASA indicated that it continued to review all current and historical records for the purpose of reclassifying, declassifying and downgrading records containing weapons of mass destruction information and other sensitive records related to homeland security. It also noted that it was "revising NASA policy directives regarding records management and security policy guidelines to further ensure that NASA personnel identify and safeguard homeland security information."

The Department of the Interior took a similar tack, asking its offices to survey all records, websites, and information systems. It highlights the use of Exemption (b)(2) for sensitive but unclassified information. Seven bureaus within the Department were identified as handling weapons of mass destruction information or other information that could impact the security of the nation or threaten public safety. The steps taken by those bureaus to protect the information were not reported.

The sole response from the military to date has been from the Navy, which forwarded the White House Memorandum along with the Ashcroft Memorandum to all FOIA contacts. It directed "You are advised to immediately adopt the steps addressed in the ISOO memorandum [] when conducting a review of documents requested under FOIA. Please pay particular attention to Attorney General Ashcroft's memorandum of October 12, 2001 [] by giving full and careful consideration to all applicable FOIA exemptions when processing documents that fall under this category."

  • Still to Come

After receiving substantive responses from all 35 of the agencies surveyed, the Archive will publish the results of the audit and all of the related correspondence, including each agency's report to the White House Chief of Staff. The Archive plans to review each agencies 2002 annual FOIA report data to determine whether it is possible to detect a change in the patterns of exemptions used to deny access to records.

 
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